Emiel A. Kandi v. Steven Langford et al

Filing 7

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Kenly Kiya Kato, re Complaint (Prisoner Civil Rights),, 1 . (Attachments: # 1 CIVIL RIGHTS COMPLAINT FORM, # 2 NOTICE OF DISMISSAL) (dts)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Plaintiff,

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v.

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Case No. CV 17-7650-GW (KK)

EMIEL A. KANDI,

ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

STEVEN LANGFORD, ET AL.,

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Defendants.

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I.

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INTRODUCTION

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Plaintiff Emiel A. Kandi (“Plaintiff”), an inmate in the custody of the

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Bureau of Prisons at Lompoc Federal Correctional Institution (“Lompoc”),

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proceeding pro se, has filed a civil rights complaint (“Complaint”) against

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numerous defendants alleging a conspiracy to “open and read-for content

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Plaintiff’s Legal Mail.” See ECF Docket No. (“Dkt.”) 1, Compl. The Court has

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now screened the Complaint pursuant to 28 U.S.C. § 1915A(a). For the reasons

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discussed below, the Court dismisses the Complaint with leave to amend.

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II.

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BACKGROUND

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On October 19, 2017, the Court received an unsigned civil rights Complaint

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from Plaintiff. Compl. 1. The Complaint sues the following individual defendants

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in both their individual and official capacities: Steven Langford, Ray Garcia, John

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Brannan, Ms. [FNU] Castillo, Melissa Nathan, James Binnebose, Jesus Mendonza,

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[FNU] Jones, Stacey Morales, Mary M. Mitchell, Lompoc U.S.P.S. Postal

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Inspector, and the Postmaster General of the United States (“Individual

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Defendants”). Id. The Complaint also names the United States Bureau of

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Prisons, the United States Department of Justice, and the United States Postal

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Service (“Entity Defendants”)1 as defendants. Id.
Plaintiff alleges six causes of action: (1) violations of the First and Sixth

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Amendment under Bivens;2 (2) conspiracy under 42 U.S.C. §§ 1985 and 1986; (3)

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intentional infliction of emotional distress under the Federal Tort Claims Act

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(“FTCA”); (4) breach of fiduciary duty; (5) obstruction of correspondence under

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18 U.S.C. § 1702; and (6) delay or destruction of mail under 18 U.S.C. § 1703. Id.

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Plaintiff’s claims arise from his allegation that “Defendant Conspirators have

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opened and read-for-content Plaintiff’s Legal Mail from private attorneys, the U.S.

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District Courts, The Ninth Circuit Court of Appeals, The United States Supreme

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Court, The U.S. Attorney, The Department of Homeland Security, and the

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National Defense Agency.” Id. at 3. Plaintiff further alleges “[t]hese pieces of

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mail were ALL opened and read outside of Plaintiff’s presence.” Id.

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The Individual Defendants and the Entity Defendants are collectively referred to
herein as “Defendants.”
2 Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S.
388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971).
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III.

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STANDARD OF REVIEW

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As Plaintiff is a prisoner who has filed a civil action seeking “readdress from

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a governmental entity or officer of employee of a governmental entity,” the Court

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must screen the Complaint and is required to dismiss the case at any time if it

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concludes the action is frivolous or malicious, fails to state a claim on which relief

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may be granted, or seeks monetary relief against a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(a).

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In determining whether a complaint fails to state a claim for screening

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purposes, the Court applies the same pleading standard from Rule 8 of the Federal

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Rules of Civil Procedure (“Rule 8”) as it would when evaluating a motion to

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dismiss under Federal Rule of Civil Procedure 12(b)(6). See Watison v. Carter,

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668 F.3d 1108, 1112 (9th Cir. 2012). Under Rule 8(a), a complaint must contain a

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“short and plain statement of the claim showing that the pleader is entitled to

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relief.” Fed. R. Civ. P. 8(a)(2).

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A complaint may be dismissed for failure to state a claim “where there is no

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cognizable legal theory or an absence of sufficient facts alleged to support a

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cognizable legal theory.” Zamani v. Carnes, 491 F.3d 990, 996 (9th Cir. 2007). In

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considering whether a complaint states a claim, a court must accept as true all of

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the material factual allegations in it. Hamilton v. Brown, 630 F.3d 889, 892-93 (9th

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Cir. 2011). However, the court need not accept as true “allegations that are merely

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conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re

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Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).

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Although a complaint need not include detailed factual allegations, it “must

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contain sufficient factual matter, accepted as true, to state a claim to relief that is

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plausible on its face.” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011)

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(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868

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(2009)). A claim is facially plausible when it “allows the court to draw the
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reasonable inference that the defendant is liable for the misconduct alleged.” Id.

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The complaint “must contain sufficient allegations of underlying facts to give fair

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notice and to enable the opposing party to defend itself effectively.” Starr v. Baca,

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652 F.3d 1202, 1216 (9th Cir. 2011).
“A document filed pro se is to be liberally construed, and a pro se complaint,

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however inartfully pleaded, must be held to less stringent standards than formal

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pleadings drafted by lawyers.” Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir.

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2008). However, liberal construction should only be afforded to “a plaintiff’s

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factual allegations,” Neitzke v. Williams, 490 U.S. 319, 330 n.9, 109 S. Ct. 1827,

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104 L. Ed. 2d 339 (1989), and the Court need not accept as true “unreasonable

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inferences or assume the truth of legal conclusions cast in the form of factual

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allegations,” Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003).
If the court finds the complaint should be dismissed for failure to state a

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claim, the court has discretion to dismiss with or without leave to amend. Lopez v.

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Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). Leave to amend should be granted

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if it appears possible the defects in the complaint could be corrected, especially if

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the plaintiff is pro se. Id. at 1130-31; see also Cato v. United States, 70 F.3d 1103,

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1106 (9th Cir. 1995). If, however, after careful consideration, it is clear a complaint

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cannot be cured by amendment, the court may dismiss without leave to amend.

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Cato, 70 F.3d at 1107-11; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th

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Cir. 2009).

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IV.

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DISCUSSION

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A.

THE COMPLAINT MUST BE STRICKEN BECAUSE IT IS

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UNSIGNED

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Pursuant to Federal Rule of Civil Procedure 11, “Every pleading, written

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motion, and other paper must be signed . . . by a party personally if the party is

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unrepresented. . . . The court must strike an unsigned paper unless the omission is
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promptly corrected after being called to the . . . party’s attention.” Fed. R. Civ. P.

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11. Here, Plaintiff failed to sign the Complaint. Hence, the Complaint must be

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stricken. See West v. Hulbert, No. 1:16-CV-46-DAD-JLT (PC), 2016 WL

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2854416, at *1 (E.D. Cal. May 16, 2016) (striking unsigned civil rights complaint

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with leave to amend).

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B.

PLAINTIFF FAILS TO STATE A CLAIM FOR RELIEF UNDER

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BIVENS AGAINST THE ENTITY DEFENDANTS, OR THE

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INDIVIDUAL DEFENDANTS IN THEIR OFFICIAL CAPACITY

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The Supreme Court has recognized an implied cause of action against

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certain federal officials for certain constitutional violations. See Bivens, 403 U.S.

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388. However, a Bivens claim is not available against federal agencies or federal

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agents sued in their official capacities. See FDIC v. Meyer, 510 U.S. 471, 486, 510

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U.S. 471, 486, 114 S. Ct. 996, 1006, 127 L. Ed. 2d 308 (1994). Hence, Plaintiff’s

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claims for relief under Bivens against the Entity Defendants, and Individual

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Defendants in their official capacity must be dismissed.

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C.

PLAINTIFF FAILS TO STATE A CLAIM FOR RELIEF UNDER

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BIVENS FOR VIOLATIONS OF THE FIRST, SIXTH, OR

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FOURTEENTH AMENDMENTS

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The Sixth Amendment prohibits prison officials from reading

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correspondence between an inmate and his lawyer. Nordstrom v. Ryan, 762 F.3d

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903, 906 (9th Cir. 2014). “This is because it is highly likely that a prisoner would

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not feel free to confide in his lawyer such things as incriminating or intimate

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personal information -- as is his Sixth Amendment right to do -- if he knows that the

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guards are reading his mail.” Id. However, correspondence between an inmate

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and a court does not constitute “legal mail” implicating Sixth Amendment

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protections. Id.; Meador v. Pleasant Valley State Prison, 312 F. App’x 954, 955

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(9th Cir. 2009)3 (stating “because the mail at issue appeared to come from the

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California Court of Appeal, it did not constitute constitutionally protected ‘legal

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mail’”).

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In addition, the First and Fourteenth Amendments provide the right to

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access the courts, which affords inmates the ability to litigate claims without active

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interference by prison officials. Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir.

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2011). To state a claim against prison officials for denial of access to the courts

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during a plaintiff inmate’s pending civil litigation, the plaintiff must allege the

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prison officials acted “in order to hinder his ability to litigate his pending civil

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lawsuits.” Id. at 1104. The plaintiff must also allege an actual injury, i.e., that

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some official action has frustrated or is impeding the plaintiff’s attempt to bring a

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nonfrivolous legal claim. Nev. Dept. of Corr. v. Greene, 648 F.3d 1014, 1018 (9th

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Cir. 2011). Specifically, a plaintiff must describe: (1) a nonfrivolous underlying

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claim that was allegedly compromised “to show that the ‘arguable’ nature of the

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claim is more than hope”; (2) the official acts that frustrated the litigation of that

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underlying claim; and (3) a “remedy available under the access claim and presently

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unique to it” that could not be awarded by bringing a separate action on an existing

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claim. Christopher v. Harbury, 536 U.S. 403, 416, 122 S. Ct. 2179, 153 L. Ed. 2d

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413 (2002). A missed filing deadline, by itself, does not state an access to the

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courts claim. See Flagg v. City of Detroit, 715 F.3d 165, 178-79 (6th Cir. 2013);

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Barbour v. Haley, 471 F.3d 1222, 1226 (11th Cir. 2006).
Here, Plaintiff identifies multiple incidents where his mail was allegedly

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“opened and read-for-content.” See Compl., Ex. A. However, only three of the

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listed incidents involve mail from an attorney. Moreover, it is unclear as to

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whether the three attorney incidents involved privileged communications with

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Plaintiff’s counsel (as opposed to communications with opposing counsel). Hence,

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The Court may cite unpublished Ninth Circuit opinions issued on or after January
1, 2007. U.S. Ct. App. 9th Cir. Rule 36-3(b); Fed. R.App. P. 32.1(a).
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because Plaintiff fails to allege facts establishing interference with “Legal Mail,” as

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defined by the courts, his Sixth Amendment claim must be dismissed.
In addition, Plaintiff identifies multiple incidents where his mail was

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allegedly delayed. Id. Plaintiff further alleges he “is always in fear of missing a

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Court deadline with absolutely no way to prove that the fault does not rest on his

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own shoulders.” Id. at 5. These allegations fail to establish an actual missed

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deadline and a resulting injury, i.e., that some official action has frustrated or is

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impeding the plaintiff’s attempt to bring a nonfrivolous legal claim. Hence,

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because Plaintiff fails to allege facts establishing an actual injury from the alleged

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mail delays, Plaintiff’s First and Fourteenth Amendment claims must be dismissed.

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D.

PLAINTIFF FAILS TO STATE A CLAIM FOR RELIEF UNDER 42

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U.S.C. §§ 1985 OR 1986

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Title 42 U.S.C. § 1985(3) (“Section 1985”) “prohibits conspiracies ‘for the

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purpose of depriving, either directly or indirectly, any person or class of persons of

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the equal protection of the laws.’” Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir.

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2005). The deprivation of rights must be motivated by a racial, or other class-

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based, discriminatory animus. Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir.

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1980). To state a Section 1985 claim, a plaintiff must allege facts showing

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agreement of the alleged conspirators to deprive him or his rights. Margolis v.

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Ryan, 140 F.3d 850, 853 (9th Cir. 1998). Conclusory allegations of a conspiracy are

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insufficient to state a valid Section 1985 claim. Id.; see also Iqbal, 556 U.S. at 678

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Title 42 U.S.C. § 1986 (“Section 1986”) “creates a right to recover damages

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. . . against every person who has knowledge of, and power to prevent, a § 1985

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conspiracy, but neglects or refuses to act.” Burnett v. Grattan, 468 U.S. 42, 44 n.5,

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104 S. Ct. 2924, 82 L. Ed. 2d 36 (1984). “A cause of action is not provided under

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[Section 1986] absent a valid claim for relief under [S]ection 1985.” Trerice v.

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Pedersen, 769 F.2d 1398, 1403 (9th Cir. 1985).

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Here, Plaintiff’s second and third causes of action allege Defendants violated

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Sections 1985 and 1986. However, the Complaint contains only conclusory

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allegations, but no specific facts, to support a conspiracy claim. Plaintiff’s factual

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allegations do not “plausibly suggest” Defendants had an agreement to deprive

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Plaintiff of his rights. Starr, 652 F.3d at 1216. In addition, while Plaintiff states he

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is an “Arab-American minority,” Compl. at 12, Plaintiff fails to allege facts

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suggesting Defendants acted with any discriminatory animus.
Accordingly, Plaintiff fails to state a Section 1985 claim. Because Plaintiff

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fails to state a claim under Section 1985(3), he also fails to state a claim under

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Section 1986. Trerice, 769 F.2d at 1403. Accordingly, Plaintiff’s claims under

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Section 1985 and Section 1986 must be dismissed.

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E.

PLAINTIFF FAILS TO STATE A CLAIM FOR RELIEF UNDER

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THE FTCA

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The FTCA waives sovereign immunity defenses in tort claims brought

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against the United States. 28 U.S.C. § 2674. “[T]he United States is the only

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proper party defendant in an FTCA action.” Kennedy v. U.S. Postal Serv., 145

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F.3d 1077, 1078 (9th Cir. 1998). Hence, because Plaintiff has not named the United

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States as a defendant, Plaintiff’s claim under the FTCA must be dismissed.

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F.

PLAINTIFF FAILS TO STATE A CLAIM FOR RELIEF UNDER 18

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U.S.C. §§ 1702 AND 1703

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Plaintiff’s fifth and sixth causes of action purport to state claims for

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obstruction of correspondence under 18 U.S.C. § 1702 (“Section 1702”), and delay

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or destruction of mail under 18 U.S.C. § 1703 (“Section 1703”). However, Section

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1702 and Section 1703 are criminal statutes and do not create a private right of

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action. Schowengerdt v. Gen. Dynamics Corp., 823 F.2d 1328, 1340 n.20 (9th Cir.

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1987) (no private right of action under Section 1702); Woods v. McGuire, 954 F.2d

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388, 391 (6th Cir. 1992) (no private right of action under Section 1703). Hence,

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Plaintiff’s claims under Section 1702 and Section 1703 must be dismissed.
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G.

THE COURT DECLINES TO EXERCISE SUBJECT MATTER

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JURISDICTION OVER PLAINTIFF’S STATE LAW CLAIM FOR

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BREACH OF FIDUCIARY DUTY

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The Court has original jurisdiction solely over Plaintiff’s federal law claims,

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which should be dismissed for the reasons set forth above. “Where a district court

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‘dismiss[es] every claim over which it had original jurisdiction,’ it retains pure[]

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discretion[]’ in deciding whether to exercise supplemental jurisdiction over the

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remaining claims.” Lacey v. Maricopa Cty., 649 F.3d 1118, 1137 (9th Cir. 2011)

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(alterations in original); see also 28 U.S.C. § 1367(c). Thus, because Plaintiff’s

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federal law claims should be dismissed, the Court declines to exercise supplemental

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jurisdiction over Plaintiff’s state law claim for breach of fiduciary duty.

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Accordingly, Plaintiff’s claim for breach of fiduciary duty is dismissed for lack of

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jurisdiction.

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V.

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LEAVE TO FILE A FIRST AMENDED COMPLAINT

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For the foregoing reasons, the Complaint is subject to dismissal. As the

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Court is unable to determine whether amendment would be futile, leave to amend

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is granted. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per

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curiam).

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Accordingly, IT IS ORDERED THAT within twenty-one (21) days of the
service date of this Order, Plaintiff choose one of the following two options:
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Plaintiff may file a First Amended Complaint to attempt to cure the

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deficiencies discussed above. The Clerk of Court is directed to mail Plaintiff a

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blank Central District civil rights complaint form to use for filing the First

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Amended Complaint, which the Court encourages Plaintiff to use.

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If Plaintiff chooses to file a First Amended Complaint, Plaintiff must clearly

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designate on the face of the document that it is the “First Amended Complaint,” it

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must bear the docket number assigned to this case, and it must be retyped or
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rewritten in its entirety, preferably on the court-approved form. Plaintiff shall not

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include new defendants or new allegations that are not reasonably related to the

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claims asserted in the Complaint. In addition, the First Amended Complaint must

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be complete without reference to the Complaint or any other pleading, attachment,

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or document.
An amended complaint supersedes the preceding complaint. Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). After amendment, the Court will

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treat all preceding complaints as nonexistent. Id. Because the Court grants

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Plaintiff leave to amend as to all his claims raised here, any claim raised in a

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preceding complaint is waived if it is not raised again in the First Amended

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Complaint. Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012).
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Alternatively, Plaintiff may voluntarily dismiss the action without

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prejudice, pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court

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is directed to mail Plaintiff a blank Notice of Dismissal Form, which the Court

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encourages Plaintiff to use.

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The Court advises Plaintiff that it generally will not be well-disposed toward

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another dismissal with leave to amend if Plaintiff files a First Amended Complaint

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that continues to include claims on which relief cannot be granted. “[A] district

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court’s discretion over amendments is especially broad ‘where the court has

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already given a plaintiff one or more opportunities to amend his complaint.’”

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Ismail v. Cty. of Orange, 917 F. Supp.2d 1060, 1066 (C.D. Cal. 2012); see also

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Ferdik, 963 F.2d at 1261. Thus, if Plaintiff files a First Amended Complaint

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with claims on which relief cannot be granted, the First Amended Complaint

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will be dismissed without leave to amend and with prejudice.

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Plaintiff is explicitly cautioned that failure to timely file a First

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Amended Complaint will result in this action being dismissed with prejudice

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for failure to state a claim, prosecute and/or obey Court orders pursuant to

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Federal Rule of Civil Procedure 41(b).

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Dated: December 08, 2017
HONORABLE KENLY KIYA KATO
United States Magistrate Judge

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